JUDGMENT :

The instant appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) against the judgment and decree dated 13.12.2019 passed by the learned Additional District Judge, Jorhat in Title Appeal No.9/2014 whereby the judgment and decree dated 31.05.2014 passed in Title Suit No.16/2010 was set aside and quashed.

2. This Court vide order dated 04.09.2020 admitted the instant appeal by formulating two substantial question of law :

i. Whether the first appellate court was justified in setting aside the judgment and decree passed by the trial court granting the relief of partition on the face of the pleading that the predecessor-in-interest of the respondents plaintiffs sold her land measuring 3 Kathas which was gifted to her by the common predecessor-in-interest of the parties to the suit as her share?

ii. Whether granting of relief to the respondents plaintiffs without considering the fact of gift to the daughters of the common predecessor in interest of the parties to the suit including the mother of the respondents plaintiffs amounts to perversity?

3. For deciding as to whether the above mentioned two substantial questions of law are involved in the instant appeal this Court finds it relevant to take note of the facts involved which led to the filing of the instant appeal.

4. One Lambeswar Das (since deceased) was the original pattadar of Periodic Patta No.97, who left behind two daughters and two sons. The two sons were Indu Bhusan Hazarika and Bibhu Bhusan Hazarika and two daughters were Nirmala Hazarika (Lekharu) and Manurama Hazarika. It was mentioned in the plaint expressly that this patta No.97 became patta No.241, which had various dags being dag Nos.7114, 7134, 7162, 7169, 7170, 7171 and 7272. It has been admitted in the plaint that during the lifetime of Late Lambeswar Das, he sold various plots of land in dag Nos.7171, 7114 and 7134 and resultantly in those dags i.e. dag No. 7171, the remaining land was 2 bighas 0 katha 17 lessas and in dag No.7134 only 14 lessas of land remained. In addition to that, Late Lambeswar Das had lands in the other Dag Nos. detailed hereinunder :

In dag No.7170 – 2 bighas 1 katha 9 lessas.

In dag No.7162 – 2 bighas 3 kathas 10 lessas.

In dag No.7169 – 3 bighas 2 kathas 12 lessas.

In dag No.7272 – 1 bigha 3 kathas 4 lessas.

The total measurement of the lands come to 12 bighas 2 kathas 6 lessas.

5. Mr. A Das, the learned counsel appearing on behalf of the respondents who were the plaintiffs submitted that in the plaint, there was a mistake of mentioning that the remaining land in dag No.7171 to be 2 bighas 17 lessas which ought to have been 1 bigha 4 kathas 17 lessas. Accordingly, after the sale which had been made, the total remaining land was 12 bighas 1 kathas 6 lessas.

6. It is further seen from the plaint that from dag No.7169, 7170 and 7172, two plots of land were gifted measuring 2 bighas 4 kathas 4 lessas and 2 bighas 4 kathas 15 lessas i.e. totaling to 5 bighas 3 kathas 19 lessas. It has also been specifically mentioned in the plaint that this 2 bighas 4 kathas 4 lessas was gifted to the 15th number pattadar and 2 bighas 4 kathas 5 lessas was gifted to the 16th number pattadar. This Court, therefore, finds it very pertinent now to take note of Exhibit-1 which shows that the pattadar No.15 was Indu Bhusan Hazarika and the pattadar No.16 was Bidhu Bhusan Hazarika. This aspect of the matter was duly admitted by the plaintiffs in the plaint itself. It is relevant, therefore, to mention that from a perusal of the plaint, it is apparent that the father Late Lambeswar Das during his lifetime had gifted 2 bighas 4 kathas 5 lessas of land to the appellant from dag No.7169, 7170, 7172 and another plot of land measuring 2 bighas 4 kathas 4 lessas of the same dags to the predecessor-in-interest of defendant Nos.1 and 2. On the basis, thereof, the plaintiffs in the suit claims that an area of land measuring 6 bighas 3 katha 17 lessas remained, which fell into th